Mike Beaudet v. Human Resources Division (SPR 20171739)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 3, 2018 SPR17/1739 Michele M. Heffernan, Esq. Deputy General Counsel Human Resources Division One Ashburton Place Boston, MA 02108 Dear Attorney Heffernan: I have received the petition of Mike Beaudet of WCVB-TVappealing the response of the Human Resources Division (Division) to a request for public records. G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Beaudet requested an electronic copy of records or databases reflecting all terminations from January 1, 2016 to the present, including the reason for the termination. In a response dated December 18, 2017, the Division denied Mr. Beaudet's request pursuant to the first clause of Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Dissatisfied with Division's response, Mr. Beaudet appealed and SPRl 7/1739 was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(c); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Michele M. Heffernan, Esq. SPRl 7/1739 Page2 January 3, 2018 Division's December 18th Response Exemption (c) The Division claims the records may be withheld under the first clause of Exemption ( c) of the Public Records Law. Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Exemption (c ) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause, relevant to this appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). To deny access to a record under the Public Records Law, a records access officer (RAO), must identify the record, categories ofrecords, or portions of the record it intends to withhold and provide the specific reasons for such withholding. G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3)(c)(4). The December 18th response did not contain the specificity required in identifying any records responsive to the request when denying access to a public record. Further, it has not met its burden for providing specific reasons for the withholding. Therefore, the Division must identify the type of record( s) it has in its possession and specify how these records fall under a statutory exemption. In his petition to the Supervisor of Records, Mr. Beaudet states, "I am not asking for the names, so I do not believe the information should be exempt from disclosure." The Division is reminded that Exemption ( c) applies to identifiable individuals. It is unclear why the Division cannot provide Mr. Beaudet with the termination information if the record is de-identified by redacting the names of the terminated employees. Furthermore, the Division has not explained how a record or database listing the terminated employees is one of the core categories of personnel information useful in making employment decisions regarding an employee.

Michele M. Heffernan, Esq. SPRI 7/1739 Page 3 January 3, 2018 Because the Division did not identify what records it has in its custody that are responsive to Mr. Beaudet's request or specifically explain how the cited exemption allows the Division to withhold, in their entirety, any records responsive to the request, I find that the Division did not comply with G. L. c. 66, §lO(b)(iv). Further, under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, §lO(a). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Division also has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. G. L. c. 66, § lO(a). It is my understanding that a Public Records Division attorney contacted you regarding this administrative appeal: Conclusion Accordingly, the Division is ordered to provide the requested records in a manner consistent with this determination, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. The Division may file a request for reconsideration of this determination within 10 business days of the date of this determination letter. Sincerely, . Rebecca S. Murray Supervisor of Records cc: Mike Beaudet